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Conflicting Paradigms of Religious Freedom: Liberty Versus Equality Stephen Pepper

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Conflicting Paradigms of Religious Freedom: Liberty Versus Equality Stephen Pepper BYU Law Review Volume 1993 | Issue 1 Article 15 3-1-1993 Conflicting Paradigms of Religious Freedom: Liberty Versus Equality Stephen Pepper Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Constitutional Law Commons, and the Religion Law Commons Recommended Citation Stephen Pepper, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 BYU L. Rev. 7 (1993). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1993/iss1/15 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. Conflicting Paradigms of Religious Freedom: Liberty Versus ~~ualit~* Stephen pepper*" Table of Contents I. INTRODUCTION. 8 11. BASESFOR CONSTITUTIONALINTERPRETATION . 11 A. Text ................................... 12 B. History . 14 1. Simple History . 17 2. The Enlightenment-deist-rationalist View . 18 3. The Radical Protestant View . 20 C. Structure and Theory . 22 D. Doctrine and Precedent . 26 E. Values, Policy and Prudence: The Why" of the Free Exercise Clause . 38 F. The Synergism of Text, History, Structure andPolicy ............................. 42 111. THE CHOICE-ENLIGHTENMENTVIEW OR RADICAL PROTESTANTVIEW . 46 IV. A QUARTETOF DIFFICULTIES. 49 A. The Establishment Clause, Equality, and Exemptions from Neutral Law . 49 B. Drawing Lines, Neutrality and Discrimination . 53 C. Administrability and Bureaucracy . 56 D. Timidity, Limits and Possibility . 59 V. CONCLUSION. 62 * Based upon presentations at the conference on "New Directions in Religious Liberty" held at Brigham Young University Law School, January 22-23, 1993 and at the Georgetown University Bicentennial Conference, "Religion and the Constitution: Exemptions Based on Conscience," Georgetown University Law Center, April 13, 1989. An earlier version of this paper was published as Stephen Pepper, A Brief for the Free Exercise CZuuse, 7 J.L. & RELIGION323 (1989). ** Professor of Law, University of Denver College of Law. A.B. 1969, Stanford University; J.D. 1973, Yale Law School. 8 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I993 Should the Free Exercise Clause of the First Amendment be read to shelter religiously motivated conduct from otherwise valid, generally applicable laws? There is general agreement, both on the Supreme Court and among commentators, that laws aimed at religion-laws intentionally singling out a religious practice, or religion in general, for a burden or prohibition-are presumptively invalid under the First Amendment.' But what of laws which are not designed to affect religion; laws with recognized, legitimate governmental purposes which have the added consequence of impinging upon, burdening, or prohibiting religious conduct? Four examples from well-known cases illustrate the issue. First, consider Mrs. Frances Quaring, a Nebraska housewife who believed that the Second Commandment prohibited her from having her photograph taken or from carrying or using photographs ("graven images" from her perspective). The State of Nebraska, however, required that applicants for a driver's license have their photographs taken and affixed to the license and prohibited driving without a valid driver's license. Thus, by state law Mrs. Quaring was denied that primary instrument of freedom and mobility in modem America-use of the automobile-because of her religious beliefs. Should we understand the Constitution's guaranty of freedom of religion as protecting Mrs. Quaring's mobility?2 Next, consider the situations in which activities of specific religions have been criminally sanctioned. The Amish are bound by a religious command to "live separate and apart" 1. Curiously, under modern doctrine it is the Establishment Clause which has been held to prohibit gover~lental action which intentionally or explicitly discriminates against religion or which discriminates among religions. See Larson v. Valente, 456 US. 228 (1982); McDaniel v. Paty, 435 U.S. 618, 636-42 (1978) (Brennan, J., concurring in the judgment); Everson v. Board of Educ., 330 U.S. 1, 15-16 (1947). With the decision this term in the Santeria animal sacrifice case, the Court has held that the Free Exercise Clause also prohibits laws which discriminate against religious conduct. Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217 (1993). 2. When the Supreme Court considered this case, it was unable to answer that question. The Eighth Circuit held that the state must issue Mrs. Quaring a license without a photo. Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), afd by equally divided Court sub nom. Jensen v. Quaring, 472 US. 478 (1985) (per curiam, Powell, J., did not participate). 71 CONFLICTING PARADIGMS 9 from mainstream society. They understand this as a command from God which requires that their children be raised "separate and apart." In turn, to the extent formal education is allowable at all, it must take place in small local schools and may not go beyond the eighth grade. Most states, however, have promulgated laws mandating universal education of all children up to the tenth grade. These laws were not targeted at the Amish, but they render criminal the religiously mandated conduct of the Ami~h.~ At one time in the history of the Mormon Church, polygamy was a religious duty for those members able to practice it. However, being married to more than one wife at a time was also the traditional crime of big am^.^ For many American Indians, the use of peyote is the central act in the religious practice of the Native American Church. However, in many states, use of peyote (along with many other powerful hallucinogenic drugs) is criminal under generally applicable, formally neutral laws.5 Except in the case of the Mormons, the government did not intentionally discriminate against or 3. In Wisconsin v. Yoder, 406 U.S. 205 (1972), Amish parents who refused to send their fourteen- and fifteen-year-old children to school after the eighth grade were convicted of violating the state's compulsory school attendance law. The Supreme Court held that the Free Exercise Clause sheltered the Amish from criminal prosecution for this conduct. The Court has also held, to the contrary, that the Clause does not shelter the Amish in their belief that the mandate to live "separate and apart" requires that they neither contribute to nor receive benefits , from the Social Security system. United States v. Lee, 455 U.S. 252 (1982). Yoder is examined at some length in Stephen Pepper, Reynolds, Yoder, and Beyond: Alternatives for the Free Exercise Clause, 1981 UTAH L. REV. 309, 333-45 [hereinafter Pepper, Alternutives]; and I have discussed Lee in Stephen Pepper, The Conundrum of the Free Exercise Clause-Some Reflections on Recent Cases, 9 N. KY. L. REV. 265, 299-302 (1982) [hereinafter Pepper, Conundrum]. These cases are also considered briefly infia part 1I.D. 4. In the initial Supreme Court case dealing with the Free Exercise Clause, the bigamy conviction of a Mormon was upheld. Reynolds v. United States, 98 U.S. 145 (1878). The opinion is described briefly infia part ED., and examined in some detail in Pepper, AZternutives, supra note 3, at 317-26. Although neutral in form, the legislation enforced in Reynolds may in fact have been targeted specifically at the Mormons. Orma Linford, The Mormons and the Law: The Polygamy Cases, 9 UTAHL. REV. 308, 314-19 (1964). If so, it would now be considered presumptively invalid, and would be factually somewhat similar to the Hialeah case. See supra note 1. 5. Sacramental usage of peyote by members of the Native American Church was held unprotected by the First Amendment in Employment Division v. Smith, 494 U.S. 872 (1990). The Supreme Court's opinion is examined at length in Douglas Laycock, Th Remnants of Free Exercise, 1990 SUP. CT. REV. 1; Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109 (1990). 10 BRIGHAM YOUNG UNIWRSITY LAW REVIEW [I993 burden these groups in their religious conduct; yet their members faced criminal conviction for following the tenets of their religion. In these situations religiously motivated conduct is either penalized or prohibited by laws which are not aimed at religion. Although the law in each case is religiously neutral in form and intent, religious believers may be burdened by the law's mandate in a way quite different from that law's effect on the rest of society. Should such situations be governed by a constitutional paradigm of equality, or a paradigm of liberty? William Marshall, a friend and a colleague in this symposium, argues that equality is the proper paradigm, and that formal equality, rather than substantive equality, should regulate.' According to this view, it is unfair-and contrary to the underlying logic of the First Amendment-to prefer religion as a basis for action over other beliefs that ground one's conduct. If the First Amendment prevents criminalization of the conduct only if it has a religious motivation, but allows governmentally imposed punishment or burden if the same conduct is otherwise motivated, religion has been preferred over other bases for action; and such a result is not constitutionally acceptable. The wrong or unfair aspect of this unequal treatment may be trivial in some instances and substantial in others. Aside from religious reasons such as Frances Quaring's, it is hard to imagine substantial prejudice or harm in being required to have a photo on one's driver's license. It simply is not much of a burden. Peyote usage is usually a rather unpleasant and -cult experience. Although there are certainly some who wish to try it on the basis of non-religious reasons, either as a result of intellectual interest or a sense of adventure, the burden of being prohibited from doing so does not seem great.
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